History of Affirmative Action

Amidst recent decisions undermining the ability of colleges to consider race in college admissions explicitly, there is much confusion around the context of this decision and the historical vestiges of this practice. This brief will offer insight into the evolution of policies promoting diversity in higher education institutions. 

Affirmative action refers to the policy or practice of setting policies and guidelines to eliminate unlawful discrimination against applicants of color. It often involves admissions preferences or policies for applicants that have historically faced significant challenges to seeking higher learning or have been discriminated against in various systemic ways, resulting in a dearth of resources and creating unequal outcomes between race groups. 

Affirmative action as we understand it today first arose in 1961 as a result of President John F. Kennedy's executive order (E.O.) 10925, which used affirmative action for the first time by instructing federal contractors to take "affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin." This order was a landmark step in ensuring diversity in American institutions, especially considering it was a precursor to the Civil Rights Act of 1964. 

In 1978, a landmark Supreme Court case, Regents of the University of California v. Bakke (1978), established that explicit racial quotas were inherently unconstitutional and violated the Equal Protection Clause (EPC) of the 14th Amendment. The EPC was a clause that prevented governmental bodies from denying citizens equal protection of governing laws. However, the Court also ruled that race could still be considered one of several factors in admissions decisions. This aspect of the ruling acknowledged the importance of diversity in education, allowing for a more nuanced consideration of applicants' backgrounds and experiences. The case affirmed that diversity in higher education could be a compelling interest, but it outlined that the methods used to achieve diversity should be carefully scrutinized.

The "Bakke" case popularized the notion of a "holistic" admissions process in which candidates' races might be evaluated as one among several factors. This case paved the way for later legal disputes and debates about the legality of affirmative action practices. 

In Grutter v. Bollinger (2003), the Court ruled that the University of Michigan Law School's affirmative action admissions policies were legal and fell within the parameters of the 14th Amendment's EPC. Four primary key points persisted from Grutter. Diversity as a compelling interest underlined the idea that diversity in education was a "compelling interest" crucial for preparing students for a diverse society and global workforce. A holistic admissions approach, where race was just one factor among many considered in the admissions process, aligned with looking at applicants as multifaceted individuals rather than solely relying on standardized measures. A "strict scrutiny standard" required the university to show that its use of race was necessary to achieve its diversity goal and that race-neutral alternatives were inadequate. Finally, individualized consideration posited that admissions officers should individually assess each applicant's qualifications and contributions and emphasized that race should not be used in a mechanical or formulaic way. 

Various cases since Grutter have affirmed and vacated various parts of the paradigm of affirmative action and race-based admissions; however, recent decisions have completely changed the landscape of diversity in higher institutions, leading many to wonder what the future will entail. 

Currently, the Students for Fair Admissions(SFFA) organization is suing Harvard and the University of North Carolina at Chapel Hill (UNC) for unfair admissions. They believe that Harvard and UNC do not have lawful admission criteria and want the Court to ban the consideration of race in admissions. 

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Analyzing the Sides of the Cases

Though the basic definition of affirmative action displays the concept as only a positive force, politics, and reality have made the issue much more nuanced. College affirmative action has taken on many forms and definitions, but it is categorized as policies to increase the racial diversity of college campuses. Although one example of affirmative action is racial quotas for incoming student populations, there are many more ways schools try to increase student diversity, which include targeted outreach and recruitment efforts, non-traditional criteria for hiring and admissions, after-school and mentorship programs, and training and apprenticeship opportunities. Through specific programs for those considered racially or economically disadvantaged, schools aim to tackle the lack of inclusion by accommodating possible barriers and inaccessibility applicants might confront. 

For many proponents, the common reason is a no-brainer, as a band-aid in the long fight against systemic racism. According to the ACLU, “Millions of Americans experience race and gender barriers in education, contracting, and employment. Existing laws help to prevent outright discrimination based on race and gender, but they alone are not enough to create equal opportunities for every American.” Therefore, supporters believe that affirmative action is necessary to correct barriers to low-income or BIPOC admits through equal opportunity. By providing a fair chance for them in the application process, the systematic disparities can be closed through greater accessibility to higher education.

On the contrary, many feel that affirmative action needs to be corrected in dealing with inequalities in the admissions process. For instance, many applicants have felt that affirmative action disadvantages their ‘deserving’ spot as a form of discrimination. They believe what was supposed to be a meritocratic process has strayed to lower academic standards. 

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Affirmative Action Ruling

Although Chief Justice John Roberts, writing for the 6-3 majority opinion, acknowledged that schools' interests in diversity are "commendable," he claimed that "they are not sufficiently coherent," arguing that it was unclear how to measure when diversity goals have been reached and how to know when the use of race should end. The majority opinion said colleges violated the Equal Protection Clause of the 14th Amendment (which ensures that all individuals within a state's jurisdiction are treated equally under the law) because their consideration of race did not meet the strict guidelines around compelling interest. Thus in the majority opinion, Chief Justice Roberts affirmed that while historically there have been deference to institutions to set diversity goals, the Harvard and the UNC cases did not present clear goals.

Roberts wrote that affirmative action fails due to a lack of "a meaningful connection" between the use of applicants' race and the interest in diversity. He focused on the fact that Black, Hispanic, and Asian Americans are internally diverse. Roberts argued that "the use of these opaque racial categories undermines" the goal of diversity. He illustrated the point by suggesting that Harvard and UNC would prefer "a class with 15% of students from Mexico over a class with 10% of students from several Latin American countries, simply because the former contains more Hispanic students." Roberts concluded that affirmative-action programs were unfocused and "unavoidably employed race in a negative manner."

Roberts called out Harvard, in particular, on several issues. He pointed out that while Harvard claimed that using race as a "plus" in admissions is never a "negative factor" for any applicant, its consideration of race led to a considerable decrease in the admission of Asian American students. Harvard's lawyers had compared its use of race as a factor in admissions to a preference given "to applicants likely to excel in the Harvard-Radcliffe Orchestra." Still, Roberts declared this argument "hard to take seriously." Because "college admissions are zero-sum," Roberts explained, "a benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter." The point of the equal-protection clause, he wrote, "is that treating someone differently because of their skin color is not like treating them differently because they are from a city or a suburb, or because they play the violin poorly or well."

The ultimate impact of this decision will become more apparent through future admissions cycles. Still, it is safe to predict that the result will be fewer students from traditionally underrepresented minorities on college campuses, particularly at the most competitive institutions. Because nine states already banned affirmative action in public universities before this decision, some as many as 15 years ago, there is clear data to assist with analyzing the impact. In 1998, after the University of California system stripped away race, gender, and ethnicity as a factor in admissions, the number of Black and Latino students enrolled at its most selective schools, Berkeley and U.C.L.A., dropped by around 40 percent. In addition to fewer minority students being admitted, fewer highly-qualified Black and Latino students even applied, perhaps under the impression that they wouldn't get in. It's not improbable for a national version of this phenomenon to crop up in the coming years. It is also possible that the proportion of Black and Latino students at less-resourced colleges (which typically have lower graduation rates) will increase. It would not be surprising for this ruling to increase applications at historically Black colleges and universities.

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